On
November 9, 2017, pro se Plaintiffs filed this suit
alleging that Defendants violated their rights under Title II
and Title III of the Americans with Disabilities Act
(“ADA”), and Section 504 of the Rehabilitation
Act. Doc. 1. Plaintiffs also filed a motion for leave to
proceed in forma pauperis (Doc. 2), which the
undersigned granted (Doc. 8) after Plaintiffs amended the
motion with the long-form application (Doc. 6). Along with
the filing of the complaint and the motion for leave to
proceed in forma pauperis, Plaintiffs also requested
court-appointed legal counsel (Doc. 3). The undersigned
ultimately denied Plaintiffs' request, and several other
similar requests (Docs. 7, 9, 13, 14), based upon the
conclusion that Plaintiffs' claims did not meet the
Eleventh Circuit's standard to appoint counsel in a civil
case because exceptional circumstances did not exist, and the
legal issues asserted by Plaintiffs were not so novel or
complex as to require the assistance of a trained
practitioner, see Docs. 12, 18.[1] On January 8,
2018, the undersigned ordered Plaintiffs to amend their
complaint to address certain problems raised by the
undersigned within the order. Doc. 8. Plaintiffs then
requested an extension of time to file the amended complaint,
which the undersigned granted. Doc. 11. Plaintiffs requested
a second extension to file the amended complaint, which the
undersigned granted. Doc. 18. In compliance with the second
extension, Plaintiffs filed with the court what has been
docketed as a First Amended Complaint and a Second Amended
Complaint. Docs. 16, 17. The complaints appear to be the
same, and there is no significant difference in the exhibits.
Compare Doc. 16 with Doc. 17. Thus, because
the filings are essentially the same, for purposes of the
court's obligatory 28 U.S.C. § 1915(e) review, the
undersigned will examine the Second Amended Complaint (Doc.
17) and the exhibits attached thereto. Such review instructs
the court to dismiss any action wherein it is determined that
an in forma pauperis applicant's suit is
“frivolous or malicious, ” “fails to state
a claim on which relief may be granted, ” or
“seeks monetary relief against a defendant who is
immune from such relief.” See Troville v.
Venz, 303 F.3d 1256, 1260 (11th Cir. 2002) (applying
§ 1915(e) in non-prisoner action); §
1915(e)(2)(B)(i)-(iii).

A
review of the sufficiency of Plaintiffs' Second Amended
Complaint for purposes of § 1915(e)(2)(B)(ii) begins
with analysis of whether the complaint complies with the
pleading standard applicable to all civil complaints in
federal courts. See Thompson v. Rundle, 393
Fed.Appx. 675, 678 (11th Cir. 2010) (citations omitted)
(“A dismissal under § 1915(e)(2)(B)(ii) is
governed by the same standard as dismissal under Federal Rule
of Civil Procedure 12(b)(6). Dismissal for failure to state a
claim is appropriate when the facts as pleaded do not state a
claim for relief that is ‘plausible' on its
face.”). Rule 8 of the Federal Rules of Civil Procedure
requires that a plaintiff file a “short and plain
statement of the claim showing that the pleader is entitled
to relief.” Fed.R.Civ.P. 8(a)(2). “[T]he pleading
standard Rule 8 announces does not require ‘detailed
factual allegations, ' but it demands more than an
unadorned, the-defendant-unlawfully-harmed-me
accusation.” Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550
U.S. 544, 555 (2007)). In general, then, a pleading is
insufficient if it offers only mere “labels and
conclusions” or “a formulaic recitation of the
elements of a cause of action[.]” Twombly, 550
U.S. at 555; see also Iqbal, 556 U.S. at 678
(quoting Twombly, 550 U.S. at 557) (a complaint does
not suffice under Rule 8(a) “if it tenders ‘naked
assertion[s]' devoid of ‘further factual
enhancement.'”). Thus, in order to satisfy Rule
8(a), Plaintiffs' complaint “‘must contain
sufficient factual matter, accepted as true, to ‘state
a claim for relief which is plausible on its
face.'” Urquilla-Diaz v. Kaplan Univ., 780
F.3d 1039, 1051 (11th Cir. 2015) (quoting Iqbal, 556
U.S. at 678). “A claim is factually plausible where the
facts alleged permit the court to reasonably infer that the
defendant's alleged misconduct was unlawful. Factual
allegations that are ‘““merely consistent
with” a defendant's liability, ' however, are
not facially plausible.” Id. (quoting
Iqbal, 556 U.S. at 678).

As a
general matter, “[i]n the case of a pro se
action . . . the court should construe the complaint more
liberally than it would formal pleadings drafted by
lawyers.” Powell v. Lennon, 914 F.2d 1459,
1463 (11th Cir. 1990). However, although district courts must
apply a “less stringent standard” to the
pleadings submitted by a pro se plaintiff, such
“‘leniency does not give a court license to serve
as de facto counsel for a party, or to rewrite an otherwise
deficient pleading in order to sustain an action.'”
Campbell v. Air Jamaica Ltd., 760 F.3d 1165, 1168-69
(11th Cir. 2014) (quoting GJR Invs., Inc. v. Cty. of
Escambia, Fla., 132 F.3d 1359, 1369 (11th Cir. 1998)).
Accordingly, Plaintiffs' complaint, even if liberally
construed, must minimally satisfy the dictates of Rule 8(a)
of the Federal Rules of Civil Procedure in order to survive
review under § 1915(e).

Like
Plaintiffs' original complaint, the Second Amended
Complaint purports to assert claims under Title II and Title
III of the Americans with Disabilities Act and Section 504 of
the Rehabilitation Act. Doc. 1 at 13-22; Doc. 17 at 16-23.
These claims stem from a state-court divorce proceeding in
which Plaintiff Miranda Mitchell and her minor child,
Plaintiff D.G.M., were allegedly discriminated against
because Plaintiff Miranda Mitchell was
“perceived” to have Munchausen Syndrome by Proxy
(“MSBP”) by the judge, her ex-husband's
attorney, and others involved in the court
proceedings.[2] Doc. 17 at 4, ¶ 1. Plaintiffs allege
that “[i]t is the policy of the States of Alabama [and]
Florida and its agencies to use [MSBP] and other mental
health accusations against women and children in family court
proceedings[, ]” and to give “preferential
treatment to fathers[.]” Id. at 12, ¶ 48.
Thus, Plaintiff Miranda Mitchell believes that, because other
individuals in her divorce proceeding perceived her as having
MSBP, “the court was biased against her according to
this sex-based stereotype.” Id. at 12, ¶
50. As a result, Plaintiff Miranda Mitchell alleges that she
and Plaintiff D.G.M. could not “fully and equally
participate in court proceedings” because Plaintiff
Miranda Mitchell was not referred “to a disability
accommodations coordinator at the courthouse or at any other
location, during the pendency of the family court
proceedings.” Id. at 12, ¶¶ 50, 51.
Plaintiff Miranda Mitchell was given a “dissolution of
marriage” in 2012, id. at 11, ¶ 46, and
it appears that Plaintiff Miranda Mitchell was not awarded
custody of Plaintiff D.G.M. as part of the state-court's
judgment, see generally id. at 15-16.

In the
undersigned's order directing Plaintiffs to amend their
complaint, the undersigned pointed out several concerns
regarding the viability of the claims Plaintiffs asserted.
See generally Doc. 8. One such concern was whether
the statute of limitations had run on Plaintiffs'
purported claims. The undersigned specifically noted in the
order to amend that the statute of limitations for claims
under the ADA and the Rehabilitation Act is two years, and
that the limitations period begins to run when a cause of
action accrues. Id. at 6-7, 8-9. Further, the
undersigned pointed out that the cause of action accrues when
Plaintiffs knew or should have known that they suffered an
injury that forms the basis of their complaint and who
inflicted that injury. Id. at 7. As Plaintiffs'
original complaint alleged wrongs that occurred during a
state-court divorce proceeding involving the custody of
Plaintiff D.G.M. that ended in 2012 with a decree of divorce,
the undersigned stated that Plaintiffs were well past the
deadline for filing such claims unless they could show that
extraordinary circumstances, which were beyond their control,
prevented them from filing the complaint, thus allowing
equitable tolling to apply. Id. at 9. The
undersigned advised Plaintiffs that “[e]quitable
tolling typically requires some affirmative misconduct, such
as fraud, misinformation, or deliberate concealment.
Jackson v. Astrue,506 F.3d 1349, 1355- 56 (11th
Cir. 2007). ‘[I]gnorance of the law does not, on its
own, satisfy the constricted ‘extraordinary
circumstances' test.'[3]Id. at 1356.” Doc.
8 at 7.

Plaintiffs'
Second Amended Complaint fares no better than the original
complaint with regards to the undersigned's concern
regarding the statute of limitations. Assuming for the
purposes of this recommendation that Plaintiffs have a
qualifying disability covered by the ADA and the
Rehabilitation Act, any denial of access to services or
discrimination based upon such a disability occurred no later
than the final divorce decree was entered in 2012. Indeed,
the Second Amended Complaint alleges that “Defendants
regarded Ms. Mitchell as having of Munchausen Syndrome by
Proxy (MSBP) . . . the court was biased against her according
to this sex-based stereotype. As a result, Plaintiffs could
not fully and equally participate in court
proceedings.” Doc. 17 at 12. Further, Plaintiffs allege
“Defendants did not refer Plaintiffs to a disability
accommodations coordinator at the courthouse or at any other
location, during the pendency of the family court
proceedings, nor offer accommodations to the Plaintiffs. As a
result, Plaintiffs could not fully and equally participate in
court proceedings.” Id. Amongst other
allegations, Plaintiffs state that the state court (between
2010-2012), ordered them into custody evaluations with a
guardian ad litem, id. at 14; that
Plaintiff Miranda Mitchell's privacy was violated when
Defendants filed a report in the state-court proceeding that
“was very private in nature[, ]” see id.
at 13; that Plaintiffs' mental health was discussed
openly in court, id.; and that the State of Alabama
and the State of Florida did not provide Plaintiff Miranda
Mitchell “a full and equal opportunity to benefit from
its services in support of reunification with her children[,
]” id. at 15. Because these allegations all
stem from actions or inactions by Defendants that occurred
during Plaintiff Miranda Mitchell's state-court divorce
proceeding, the last possible time that Plaintiffs'
rights were violated under the ADA or the Rehabilitation Act
occurred in 2012 when the divorce decree was entered. At that
time, the cause of action accrued, and the statute of
limitations began to run. There is no information in
Plaintiffs' Second Amended Complaint that would lead the
undersigned to believe that Plaintiffs did not know or should
not have known at that time that their rights were violated
and who violated those rights, and the Second Amended
Complaint does not suggest any type of fraud, misinformation,
or deliberate concealment on the part of Defendants to
prevent Plaintiffs from filing suit. Thus, without any
information that could lead the undersigned to conclude that
Plaintiffs claims should be equitably tolled, the undersigned
must conclude that the claims are time-barred, and that the
Second Amended Complaint should be dismissed prior to service
of process for failure to state a claim.

To be
sure, Plaintiffs do allege that certain grievances that
resulted from the state-court interaction have continued to
the present. For example, Plaintiffs' Second Amended
Complaint states that “[f]rom 2010 - present,
Defendants have regarded Plaintiffs as having a mental
impairment called Munchausen Syndrome by Proxy (MSBP) and
discriminated against Plaintiffs according to these perceived
mental impairments.” Doc. 17 at 4, ¶ 1. Plaintiffs
also allege that the suit “is a lawsuit for damages
arising from defendants plaintiffs 14th amendment
civil rights violation that are ongoing. Exhibit 2: Child
Welfare Technical Assistance Manual[, ]” id.
at 10, ¶ 39 (no alteration to original); that
“[f]rom 2010 - present, Alabama and Barbour County
Court, Florida and Palm Beach County Court has regarded
Plaintiffs as each having one or more mental health
disabilities, mainly [MSBP, ]” id. at 13,
¶59; that Plaintiff Miranda Mitchell “has
experienced psychological impairments accompanying PTSD that
negatively affect major life activities and bodily
functions[, ]” and that she has “had to seek a
significant amount of medical treatment to mitigate her
condition[, ]” id. at 16, ¶ 79; and that
“[b]ecause the Defendants exploited Plaintiffs'
disabilities, it has rendered Plaintiff Miranda M
Mitchell's diagnosis of PTSD so severe that she does not
trust them, has lost faith in the legal system, and cannot
effectively communicate with them to retrieve and access her
child[, ]” id. at 16, ¶ 78.

While
it appears that Plaintiffs attempt to establish ongoing harm
or continuing violations of the ADA and Rehabilitation Act
with these facts and thereby possibly circumvent the
applicable two-year statute of limitations, the attempt falls
short. Even assuming these allegations are true, they do not
allege that Plaintiffs, as presumably qualified individuals,
are being “excluded from participation in or be[ing]
denied the benefits of the services, programs, or activities
of a public entity, or be[ing] subjected to discrimination by
any such entity[, ]” as protected by Title II of the
ADA. See 42 U.S.C. § 12132. Nor do the
allegations show that Plaintiffs, as presumably qualified
individuals, are being “excluded from the participation
in, be[ing] denied the benefits of, or be[ing] subjected to
discrimination under any program or activity receiving
Federal financial assistance[, ]” as protected by the
Rehabilitation Act. See 29 U.S.C. § 794(a).
Instead, the allegations, at their core, pertain to the
effects of the actions or inactions by Defendants
that occurred during the state-court divorce proceeding.
Unfortunately for Plaintiffs, those effects are not
themselves separate violations of the ADA or the
Rehabilitation Act, and, therefore, do not reset the clock as
actionable violations of either Act. See generally
Delaware State Coll. v. Ricks, 449 U.S. 250, 258 (1980)
(indicating, in the employment context, that a continuing
violation of the ADA must consist of more than merely the
lasting effect of a past act); United Air Lines, Inc. v.
Evans, 431 U.S. 553, 558, 560 (1977) (same);
Abramson v. Univ. of Hawaii, 594 F.2d 202, 209
(1979) (noting that, in a Title VII discrimination case,
“[t]he proper focus is upon the time of the
discriminatory acts, not upon the time at which the
consequences of the acts became most painful”)
(emphasis added); Donaldson v. O'Connor, 493
F.2d 507, 529 (5th Cir. 1974) (when a violation alleged
involves continuing injury, the cause of action accrues, and
the limitation period begins to run, at the time the unlawful
conduct ceases); Lovett v. Ray, 327 F.3d
1181, 1183 (11th Cir. 2003) (“The critical distinction
in continuing violation analysis . . . is whether the
plaintiff[ ] complain[s] of the present consequence of a
one[-]time violation, which does not extend the limitations
period, or the continuation of a violation into the present,
which does.”); McGregor v. La. State Univ. Bd. of
Sup'rs, 3 F.3d 850, 855 (5th Cir. 1993) (recognizing
that “[a] plaintiff cannot use the continuing violation
theory to resurrect claims about discrimination . . .
concluded in the past, even though its effects
persist”). Accordingly, despite Plaintiffs'
possible attempt to circumvent the statute of limitations by
alleging ongoing harm or continuing violations of the Acts,
equitable tolling does not apply to their claims, making them
time-barred.

Given
all of the above, the undersigned finds that Plaintiffs'
Second Amended Complaint fails to state a claim under the ADA
or the Rehabilitation Act because the claims are
time-barred.[4] Thus, for the reasons stated above, the
undersigned Magistrate Judge hereby RECOMMENDS that
Plaintiffs' Second Amended Complaint be dismissed
pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) prior to
service of process. It is further

ORDERED
that Plaintiffs are DIRECTED to file any objections to the
said Recommendation on or before April 24,
2018. Any objections filed must specifically
identify the findings in the Magistrate Judge's
Recommendation to which the party is objecting. Frivolous,
conclusive, or general objections will not be considered by
the District Court. The parties are advised that this
Recommendation is not a final order of the court and,
therefore, it is not appealable.

Failure
to file written objections to the proposed findings and
recommendations in the Magistrate Judge's report shall
bar the party from a de novo determination by the
District Court of issues covered in the report and shall bar
the party from attacking on appeal factual findings in the
report accepted or adopted by the District Court except upon
grounds of plain error or manifest injustice. Nettles v.
Wainwright, 677 F.2d 404 (5th Cir. 1982); see Stein
v. Reynolds Sec., Inc., 667 F.2d 33 (11th Cir. 1982);
see also Bonner v. City of Prichard, 661 F.2d 1206
(11thCir. 1981) (en banc) (adopting as binding
precedent all of the decisions of the former Fifth Circuit
handed down prior to the close of business on September 30,
1981).

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